TSA Employee vs. Advice Goddess

Amy Alkon, author of I See Rude People, wants TSA pat-downers to back off.

PHOTO BY KEVIN SCANLON

Just because she offers advice on manners in the modern world, don't expect blogger/columnist Amy Alkon to stand by quietly if she thinks a government employee is violating her rights at the airport.

"I'm just a normal girl from the Midwest who doesn't believe that she gets to have these rights and then doesn't have to stand up for them when they're violated," Alkon says.

It's hardly the first time somebody has complained about being groped improperly going through a pat-down at the airport.

It's not even the first time Alkon, author of I See Rude People (McGraw-Hill), says she has been the victim of an intrusive pat-down by employees of the Transportation Security Administration on her way to catch a plane.

But Alkon's heated reaction to her March 31 run-in with the TSA at LAX has led to the first time a TSA employee has actually threatened to sue for defamation over someone's response to a pat-down.

Alkon reacted emotionally and used strong language in objecting to how her pat-down was conducted — and then wrote about it on her blog, naming the TSA employee, Thedala Magee.

According to Alkon, Magee placed her fingers inside Alkon's vagina through her pants four times and groped her breasts, while Alkon sobbed loudly and exclaimed, "You raped me."

Then she wrote about it on her Advice Goddess blog.

This spurred Magee's lawyer, Vicki Roberts, to write Alkon a letter, labeling Alkon's account of the pat-down false, accusing the blogger of defaming Magee and demanding that Alkon take down her blog post.

Alkon responded not by taking down the post but by writing more about it. She also found herself a lawyer, who wrote back that Magee's lawyer didn't know what she was talking about, that Alkon's speech was legal, either because the conduct was indeed close to fitting the definition of rape or because she was entitled to use rhetorical hyperbole in response to the pat-down.

Says Alkon: "When I said, 'You raped me,' I don't think anybody thought that she [Magee] had taken me out into the alley and sexually assaulted me. But it's still rape, even if you're doing the government's business."

In his Sept. 6 letter to Magee's lawyer, Alkon's lawyer, Marc Randazza, wrote: "Your client aggressively pushed her fingers into my client's vulva. I am certain that she did not expect to find a bomb there. She did this to humiliate my client, to punish her for exercising her rights, and to send a message to others who might do the same. It was absolutely a sexual assault, perpetrated in order to exercise power over the victim."

Alkon is the blogger/advice columnist who offers guidance for appropriate manners along with a strong dose of libertarian philosophy, delivered with a droll sense of humor and more than occasional bite.

She has taken up the cause against the TSA, which critics — including the American Civil Liberties Union, the Electronic Privacy Information Center and the libertarian Cato Institute and Reason Foundation — contend is attacking our most basic civil liberties while at the same time failing in its basic mission of protecting air travelers.

At issue in particular are pat-downs TSA conducts when air travelers refuse to go through body scanners at the airports. Alkon and others say the scanners aren't safe for human use; the TSA insists that they are. Alkon and others say the pat-downs are conducted to be harsh retaliation for travelers who refuse to submit to the body scanner.

Ginger McCall, open government counsel of the Washington, D.C.–based Electronic Privacy Information Center, says she has reviewed hundreds of pages of complaints filed against TSA, which her organization obtained through the Freedom of Information Act.

While she was not familiar with the circumstances of Alkon's pat-down, she says it sounded "extreme" compared to the complaints she has reviewed.

"We've seen reports of touching of breasts and buttocks," McCall says. "People are uncomfortable with the level of contact. It seems that the pat-downs are designed to be retaliatory and invasive."

Most complaints are met with a form letter and little else, McCall says, though the TSA recently changed its procedures for pat-downs of pilots after the pilots sued. The agency also has changed its policies for pat-downs of children, she said.

A TSA spokesman says his agency has conceded that the pat-downs can be "intrusive and uncomfortable" but denies that they're intended to be retaliatory. The spokesman, Nico Melendez, also denies that there had been a lot of complaints over the pat-downs, relatively speaking. "We have received less than 1,000 complaints since October of last year," Melendez says, "and we screen 2 million people a day."

As to Alkon's allegations against Magee, Melendez says: "We had personnel at the security checkpoint when the pat-down occurred. It was witnessed and it was handled appropriately."

Melendez says about Magee's threat of a defamation lawsuit, "If our employee feels she has a lawsuit, that's being her as an individual, not on behalf of the agency, and it would be completely inappropriate for me to comment on it."

Meanwhile, the lawyers for Alkon and Magee are sharpening their verbal knives for battle. "This incident has been completely fabricated," says Vicki Roberts, Magee's lawyer. "The evidence will show that she planned it in advance, and unfortunately my client was the victim of her scheme."

Roberts declined to provide details.

As for the alleged defamation, Roberts says: "Free speech is not absolute. Accusing somebody of a crime they didn't commit is defamation per se."

Not surprisingly, Alkon's lawyer, Randazza, disputes Roberts' legal theory. "The conduct fits a reasonable definition of rape, and if you say something truthful, it's not defamation. In addition, you have the right to use linguistic license."

Randazza says he supports Alkon's stance against the pat-downs. "Frankly, I'm proud of her. Every time I go through an airport, I think it's my responsibility to resist. I never go through those machines [body scanners]."

As for the legal issue of defamation, Dov Fischer, a defamation expert on the faculty of Loyola Law School, after reviewing the circumstances, says Alkon probably would win.

"She explicitly defined the word 'rape' as she meant it," Fischer wrote in an email. "She did not leave any doubt what she meant by 'rape.' That is, she made clear that she was using the word 'rape' as a surrogate verb for the process of a TSA agent sticking her fingers probingly into Alkon's private female organs. There is no way a reader can think that Alkon was accusing the TSA agent of having committed rape in the classic sense of the term."

The one caveat, Fischer added, is if Magee can prove that the intrusive pat-down did not occur in the way Alkon described it.

Randazza says the best outcome at this point would be if Roberts convinced her client that she doesn't have a case. Roberts, meanwhile, insisted earlier this week that she is preparing a lawsuit.

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